Douglas

This is an appeal from the judgment and from an order denying a new trial.

The plaintiff had judgment against the defendant in the sum of $1,690, alleged to have been earned by the plaintiff as a broker’s commission in procuring a purchaser for certain real estate belonging to the defendant.

The facts in the case as revealed by the pleadings and proof are substantially these :

On December 5, 1910, the defendant, by an instrument in writing, authorized the plaintiff to offer for sale a tract of land in Tehama County containing three hundred and forty acres. By the terms of the authorization the plaintiff was empowered to offer the entire tract for sale at $52.50 per acre, upon the express condition that “not less than seven thousand five hundred dollars cash in United States gold coin” should be paid down, and the “balance as may be mutually agreed upon.”

The complaint proceeded upon the theory that plaintiff had procured a purchaser for defendant’s lands at fifty-five dollars per acre, who was ready, willing, and able to buy, and who, as an evidence of good faith, had deposited with the plaintiff the sum of one thousand dollars in cash as the first payment on account of the…